Under the U.S. Supreme Court: Gingrich threats a dark omen for courts?

WASHINGTON, Jan. 1 (UPI) -- Republican presidential contender Newt Gingrich may have fired the first shot, but the federal courts and especially the U.S. Supreme Court may be in danger of being seen as political entities rather than an impartial judiciary.

The late Chief Justice William Rehnquist used to muse that the Supreme Court had no real way to enforce its decisions on the lower courts other than its "authority."

When the justices agree to review a case, they can reverse or affirm the ruling of an appeals court. But often they remand a case back to the lower court for further proceedings based on the principles outlined in a Supreme Court majority opinion.

Almost always the appellate court will do just that -- rethink the case and decide it differently based on what the Supreme Court majority has said. Infrequently, an appellate court seems to turn a deaf ear, and hands down a new decision that looks very much like its first one.

In that event, the losing side usually asks the Supreme Court to take another look, and the justices render a new majority opinion designed to bring the lower court to heel.

Somehow, it all works.

However, though Supreme Court authority is strong, it isn't infinitely tensile. After all, the high court only has the power to review the constitutionality of U.S. laws because it -- the Supreme Court itself -- said it did in 1803's Marbury vs. Madison. The rest of U.S. society largely has come to agree that the justices have the constitutional final say in all legal matters, though large minorities protest that authority on issues such as abortion or prayer in the public schools.

Currently, five conservatives led by moderate conservative Justice Anthony Kennedy have the muscle to decide any issue they want, any case that is politically important to them. The court's four liberals are left with the task of trying to lure Kennedy or one of the harder-line conservatives to their point of view.

Two cases that the high court is set to consider later this term could prove to be political pitfalls, especially if they are decided along the Supreme Court's ideological fault line.

One could affect the balance of power in the U.S. House of Representatives. At issue in the case is which redistricting plan Texas should use for congressional and statehouse races: One drawn up by the state Legislature that favors Republicans or one drawn up by a three-judge panel in San Antonio that takes into account the state's burgeoning Hispanic population, as required by the Voting Rights Act.

If the panel's plan comes up the winner in the Supreme Court, three of the four new congressional seats Texas is due could end up in the hands of Democrats. If the state's plan is the winner, it's hard to see how the Supreme Court could avoid weakening the Voting Rights Act.

The second case has even more political impact. The Patient Protection and Affordable Care Act of 2010 -- the healthcare reform law -- is being challenged by 26 states. A decision by the Supreme Court on the challenge should come before the end of June, smack in the middle of President Obama's re-election campaign.

An analysis by Thomson Reuters News & Insight shows the political considerations implicit in how the justices vote.

"Aside from the merits, political scientists have shown a correlation between the political party of a nominating president and Supreme Court justices' voting behavior in economic and civil liberties cases," the analysis says. "The court has five justices who were nominated by Republican presidents (Scalia, Kennedy, Thomas, Roberts and Alito) and four nominated by Democratic presidents (Ginsburg, Breyer, Sotomayor and Kagan).

"If the justices' political backgrounds foreshadow the eventual ruling, the outcome could depend on frequent swing voter Justice Kennedy."

In attacking the independence of the federal courts, Newton Leroy Gingrich may just have been trying to stand out in a crowd that includes Ronald Earnest Paul, Willard Mitt Romney and, of course, Barack Hussein Obama.

But putting the courts under presidential or congressional control is apparently a deep-seated idea in the former House speaker's restless mind. Those weren't just off-the-cuff remarks.

"Item No. 9" in the Newt 2012 position paper is "Bringing the Courts Back Under the Constitution."

"The Founding Fathers felt strongly about limiting the power of judges because they had suffered under tyrannical and dictatorial British judges," the position paper says, adding, "Since the New Deal of the 1930s, however, the power of the American judiciary has increased exponentially at the expense of elected representatives of the people in the other two branches. The judiciary has acted on the premise of 'judicial supremacy,' where courts not only review and apply laws, but also actively seek to modify and create new constitutional law from the bench that the Supreme Court has asserted should be binding on the other two branches.

"Judicial supremacy operates on the assumption that a Supreme Court decision on constitutional interpretation is final for all branches of government unless the court reverses itself in the future, or a constitutional amendment is passed."

But the courts have been "politicized to the point of an abuse of power ... the public has increasingly come to view them as an usurpative device for unelected rulers," the paper says. "This abuse of power and loss of public confidence amounts to a constitutional crisis."

So what did Gingrich say that got him in such trouble on editorial pages in December?

The former House speaker said if he became president he would try to abolish some courts and remove "activist" judges outside the mainstream, the Huffington Post reported.

Under a Gingrich administration, judges would be subpoenaed to appear before congressional committees and explain controversial decisions, and could face arrest or impeachment if they don't show up.

"You have an increasingly arrogant judiciary," he told CBS' "Face the Nation." "The question is: Is there anything we the American people can do? The standard answer has been eventually we'll appoint good judges. I think that's inadequate. The Constitution promises a balance of the judicial branch, the executive branch and the legislative branch. The Federalist Papers say specifically the weakest of the three branches is the judiciary."

As for deciding whether the executive or the legislative branch should intervene in the judiciary branch, the Huffington Post quoted Gingrich as saying: "I think it depends on the severity of the case. I'm not suggesting that the Congress and the president review every decision. I'm suggesting that when there are decisions ... in which they are literally risking putting civil liberty rules in battlefields. I mean it is utterly irrational for the Supreme Court to take on its shoulders the defense to the United States. It is a violation of the Constitution."

Gingrich's comments drew criticism from Romney, among others.

But there was also support, indicating that Gingrich's comments weren't so far out of the conservative mainstream as first thought.

"Speaker Gingrich's campaign position paper ... has serious flaws such as proposing that Congress and the executive could limit the jurisdiction of the courts to hear cases challenging unconstitutional laws that are enacted by those two branches," an analysis in the American Thinker said in late December. "One of the controversial positions in the paper that has drawn criticism is that Congress may subpoena judges to testify about judicial opinions they've written.

"Subpoenaing judges actually may be one of the better ideas in the paper, and could be implemented independent of the other proposals," the article said. "In fact, there is no provision in the Constitution barring Congress from subpoenaing judges now."

The Wall Street Journal also thought Gingrich was on the right track. "'Gingrich would arrest judges,' scream the headlines," the newspaper editorialized. "You'd think he'd proposed some crazy, unconstitutional crackdown on federal judges. Instead, Newt Gingrich's position paper ... has a set of controversial but thoughtful proposals for reining in judicial activism.

"These include calling judges before Congress to explain their decisions, impeaching judges or eliminating courts that consistently get the Constitution wrong, and limiting the applicability of Supreme Court decisions that distort the Constitution," the Journal said. "They've been dismissed as violations of the Constitution's separation of powers. The criticisms are overblown. All are constitutional if carefully implemented and constrained to the appropriate circumstances."

The larger question, of course, is who gets to decide whether a set of courts "consistently get the Constitution wrong" or whether Supreme Court decisions "distort the Constitution"?

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